SRC: “sudden or identifiable” physiological change not required for an injury

May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93

The Full Court of the Federal Court of Australia has changed the approach to whether an injury has been sustained by reference to a “sudden or identifiable” physiological change under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ considered the authoritative decisions in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, Australian Postal Corporation v Burch (1998) 85 FCR 264 and, most notably, Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning).

The Full Court stated it did not mean that a “sudden or identifiable physiological change” was required to establish that an “injury”  had been suffered, stating [at 110]:

“We do not, however, see in the statutory concept of injury in the SRC Act any necessity for the attribute of “suddenness”. The passage from the judgment of Latham CJ in Hume Steel 75 CLR at 252-253 has force, not as a substitute definition, but as an informing guide to the content of meaning of the word, including its relationship to ordinary meaning or common understanding. An injury involves “physiological change or disturbance of the normal physiological state” as an alteration to a person’s physical or mental state, and one that can be said to be an alteration from the functioning of a healthy body or mind. It is antithetical to the use of a word like “injury” in this legal context to load it up with qualifications having the effect of narrowing or constraining the circumstances to which it might be applied, unless those qualifications or constraints are drawn from the text or structure of the statute. Any relevant constraints on meaning are to be found expressed by Parliament in the legislation. The degree to which an injury may reflect an identifiable event will depend on the circumstances…”

The Court concluded:

[205] With respect, the Tribunal’s expression of what Gleeson CJ and Kirby J said in Kennedy Cleaning at [35] in [6] of its reasons was wrong. Their Honours (the Chief Justice and Kirby J) did not say that a long line of decisions recognised that for there to be an injury requires that a “sudden or identifiable physiological change” be established. They said the following at [34]-[35]:

There are differences in the approaches adopted in the majority comprised of the joint reasons of Toohey, McHugh and Gummow JJ, and the reasons of Kirby J in Zickar. But less important than the differences are the points in common which all members of the majority recognised and emphasised.

These included the reminder that a long line of decisions in Australia had recognised that an “injury”, being a sudden or identifiable physiological change, could nonetheless qualify within the ordinary application of that expression appearing in workers’ compensation legislation, although the change was internal to the body of the worker. It did not have to be external or necessarily produced by external causes. Moreover, the inclusion in the definition of “injury” in s 6(1) of the Act of “mental injury” makes it plain beyond argument in this case that the injuries for which the Act provides are not confined to those originating externally to the body of the worker.

[206] We do not read their Honours’ use of the word “being” on the second line of [35] as definitional. They used other phrases in their reasons and they referred with approval to Hume Steel.

[207 Further, to the extent that the Tribunal and the submissions of the respondent sought to substitute for the statutory concept of “injury” in s 4 the words “sudden or identifiable physiological change” (a phrase not included in the statute) and by implication necessarily to exclude the vertigo suffered by the appellant, as well as the other physiological changes he reported, such a course was erroneous.

[208] Paragraph 52 of the Tribunal’s reasons was the commencement in detail of the Tribunal’s reasoning process on the facts and material as found by it. At [52] (part of which also appears at [129]) the Tribunal said:

We have found the issue of what constitutes an injury simpliciter to be a difficult one to determine in this case. In our view, it is worth stating the questions that we consider Mr May’s case poses. First, in order to establish an injury simpliciter, is it sufficient to find that a person suffers symptoms in the course of his or her employment and that the person is not a malingerer, in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms, or a psychiatric disorder to account for them? Second, in this situation, is subjective evidence of symptoms – in this case Mr May’s personal evidence – sufficient to establish a non-disease injury? The Tribunal’s understanding of the current state of the law, discussed above, is that the answers (sic) to both questions is ‘No’.

  1. A number of misunderstandings and misdirections appear in this passage. First, on the authorities to which we have referred, and the proper construction of “injury” in s 4, there is no basis for the distinction made by the Tribunal between evidence of what it calls “symptoms” and the need for a “diagnosis”. As part of the statutory question, one asks whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind. There is no warrant from the statute or the cases to require diagnosis or medically ascertained cause.
  2. Secondly, even if there was – as the Tribunal put it – a need for “physiological evidence, pathology or a known diagnosis”, the Tribunal itself had made a finding (at [48] of its reasons) that the condition the appellant found “the most disabling” was vertigo. There is no other way to read [48] of the Tribunal’s reasons than that it accepted, as a matter of fact on the evidence and material before it, that the appellant suffered from vertigo at the time of its review. The Tribunal repeated the substance of that finding at [65] of its reasons where it stated that the appellant’s other conditions (gastroenteritis and upper respiratory tract infections) appear to have been transient and the current cause of his incapacity appears to be what we have described as vertigo, an illness the symptoms of which appear to be ongoing.
  3. Given these findings by the Tribunal (and putting to one side their unnecessary characterisation by the Tribunal as “symptoms”) the question the Tribunal should have asked and answered was (in the light of the finding of the onset of vertigo and of all relevant material) whether the appellant suffered an injury, without seeing as essential preconditions a formal diagnosis or objective medical evidence corroborating the physiological changes reported by the appellant. The requirement for objective medical evidence and diagnosis misdirected the enquiry for substantiating material and tended to raise a requirement for an identifiable event or incident or cause that had a connection (of more than a temporal character) with employment.
  4. Thirdly, neither the terms of s 4 of the SRC Act, nor the authorities, preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion. Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case. The error in the Tribunal’s reasoning process at [52] was to proceed on the basis that a claimant’s account could never suffice to establish an injury.

David Cormack – Brisbane Barrister & Mediator

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